By Martin J. Greenberg and Jaime Garcia Montes
The prospect of beginning a professional career in athletics often incites elation equally for the collegiate athletes themselves as well as those seeking to represent them. With the average player salaries in professional sports leagues, such as the National Basketball Association (“NBA”) and Major League Baseball (“MLB”), exceeding eight million and four million dollars per year respectively, the level of competition to secure representation of collegiate athletes has never been higher. As such, it has become commonplace for prospective agents to use any means necessary to ensnare student-athletes with even the slightest potential for a professional career. Accordingly, in 2000 the National Conference of Commissioners on Uniform State Laws (Uniform Law Commission, the “ULC”) drafted and implemented the Uniform Athlete Agents Act (“UAAA”).
The primary goal of the UAAA was to protect the interests of student-athletes and academic institutions by regulating the activities of sports agents while at the same time achieving uniformity among states. However, following a string of reported scandals involving student-athletes receiving gifts and various improper benefits from athlete-agents, the UCL intervened and introduced the Revised Uniform Athlete Agents Act (“RUAAA”) in 2015. Improving on the original Act, the RUAAA: (1) provides further protection for student-athletes and educational institutions; (2) has simplified the system of regulations imposed upon athlete-agents; and (3) has provided a uniform agent registration process for use by state agencies.
The RUAAA accomplishes these objectives in a number of ways. First, the RUAAA provides further protection by broadening the definition of key terms, including “athlete-agent” and “student-athlete.” Further, in an effort to protect student-athletes from unconscionability, the RUAAA requires that when a student-athlete signs a contract with an athlete-agent, the student-athlete must sign a separate attachment in which they acknowledge their forfeiture of eligibility as well as the potential risks involved. Moreover, the RUAAA adds criminal and civil penalties against athlete-agents, which did not exist under the UAAA. Lastly, the RUAAA requires athlete-agents to register in states where they do business, as well as notify any university of their recruiting efforts.
Notably, although the UAAA has been adopted by more than 40 states, the RUAAA has only been introduced in 15 states. The State of Wisconsin has adopted the Uniform Athlete Agent Act which constitutes Wisconsin Statute §§ 440.99 through 440.999. I was one of the committee members who helped author the legislation. Another state which has adopted the UAAA happens to be the State of North Carolina. This is relevant in consideration of Williamson v. Prime Sports Marketing, LLC – a recent North Carolina case arising out of a marketing agreement between a student-athlete and a prospective agent whereby the interpretation of the terms “student-athlete” and “athlete-agent” played a paramount role in the Court’s decision.
II. Background and History
a. Parties Involved.
i. Zion Williamson.
Zion Lateef Williamson (“Williamson”) is one of the NBA’s brightest young talents. Standing at 6’7 and weighing over 280 lbs, he is physically distinct from your prototypical basketball player. Being the number one pick in the NBA draft comes with a heightened level of pressure for players entering the league. As the first overall pick, the player is automatically held to unreasonable expectations and is often deemed a “bust” if the player achieves anything less. Williamson is no exception, as he was popularly labeled “the next LeBron James” before ever playing a minute in the NBA. However, as the number one pick in the 2019 NBA draft, Williamson has already exceeded the heightened expectations thus far in his young career. In his rookie season, Williamson was limited to playing in only 24 games following a procedure to repair a torn meniscus as well as an overabundance of caution by his new NBA team, the New Orleans Pelicans. Despite coming off such a significant injury and being limited to a mere 24 games, many of which included minute restrictions for Williamson, he averaged an impressive 22.5 points per game (“PPG”), 6.3 rebounds per game (“RPG”), and 58% field goal percentage (“FPG”). The extensive amount of time that Williamson missed likely cost him the Rookie of the Year (“ROTY”) award; nonetheless, his performance was still captivating enough to earn him a spot on the 2020 All-Rookie 1st Team.
Now, mid-way through his second season with the Pelicans, Williamson has shown tremendous growth and development in his game, improving in nearly every single primary statistic from the previous season.
At only 20 years old, Williamson is still two years younger than the average NBA rookie. As such, the amount of success that he is achieving at the NBA level is unquestionably rare for a player of his age and experience; yet, hardly rare for Williamson himself. Success on the basketball court has been a consistent theme in Williamson’s life, even before stepping foot in the NBA.
The country was first introduced to Williamson when he was a freshman at Spartanburg Day School, a small K–12 private school in Spartanburg, South Carolina, where he played basketball for the Griffins. As a freshman, Williamson stood at 6’3 and weighed about 175 lbs. Videos of Williamson dominating his high school competition began racking up millions of views on YouTube, marking the beginning of his transition from a small-town kid to a viral sensation. As a sophomore, Williamson averaged 28.3 points, 10.4 rebounds, 3.9 blocks, 2.7 steals and 2.5 assists per game to lead Spartanburg Day to its first SCISA 2A state championship. His progression didn’t stop there, as he averaged more than 35 PPG in his junior and senior seasons while also leading his school to two more state championships.
As a natural by-product of being a generational talent and viral sensation, Williamson garnered the much-deserved attention of basketball fans and scouts across the country. By the conclusion of his senior season in the spring of 2018, Williamson was ranked as a five-star recruit by all of the major recruiting services and a consensus top-five prospect. Accordingly, Williamson received dozens of offers from schools across the country; but in the end, it was Duke University that prevailed in the race for Williamson’s services.
While playing for Duke during the 2018-2019 collegiate basketball season, Williamson captivated the country and emerged as a dream NBA prospect and the consensus #1 overall pick candidate for the 2019 NBA draft. Although his team fell short of winning the National Championship, Williamson excelled with respect to individual achievements, earning accolades such as: ACC Player of the Year, ACC Athlete of the Year, and ACC Rookie of the Year.
Following the conclusion of his lone season with the Duke Blue Devils, Williamson declared his eligibility for the 2019 NBA draft on April 15, 2019. Thus, in compliance with National Collegiate Athletic Association (“NCAA”) regulations, Williamson became eligible to be represented by an agent or organization in the marketing of his athletic ability or reputation. Five days later, on April 20, 2019, Williamson signed a five-year marketing agreement (“Agreement” or “Contract”) with Gina Ford (“Ford”) and Prime Sports Marketing, LLC (“PSM”).
ii. Gina Ford and PSM.
Ford is the president, manager, and a registered agent for PSM. There is not much information available to the public on her. However, according to an interview with Ford conducted by The Arza Group in January of 2017 (“2017 Interview”), Ford claims to have begun her career in banking before transitioning to a career in sales and marketing.  Soon after making the transition, Ford started her own company focused on marketing and branding in sports and entertainment. In this capacity, Ford claims to have secured marketing deals for a wide-range of clients, including entertainer, Martin Lawrence, as well as several NFL players, and even global-phenomenon and generational-athlete, Usain Bolt (“Bolt”). Ford claims in the 2017 Interview to have begun working with Bolt in 2008 and takes credit for growing Bolt’s global brand by securing unprecedented lucrative marketing deals for him.
In April of 2018, Ford created PSM – a marketing agency headquartered in Miami, Florida. Despite her extensive experience in representation of professional athletes across various sports, Ford never became a certified agent with the National Basketball Players Association (“NBPA”), or with any state other than Florida. Further, according to the HoopsHype database of NBA agencies, PSM has never represented any NBA players. Nonetheless, just a year after its founding, Ford and PSM were able to secure a marketing deal with the NBA prodigy, Williamson.
In her 2017 Interview, Ford praised Bolt for his unique decision to be represented by a boutique marketing agency rather than taking the common-route of signing with a more prominent agency such as “Creative Artists Agency (“CAA”), Octagon, or WME-IMG.” After signing Williamson to PSM, Ford must have believed she had once again beat out her larger competitors and had high expectations for what could transpire from their Agreement. Unfortunately for Ford, Williamson serving as her next Bolt-level client was not to be. Only a few weeks after the partnership between Williamson and PSM was formed, Williamson signed a global-marketing deal with CAA.
Neither CAA, nor the particular CAA representatives involved with this matter, are parties to the lawsuit brought by Williamson in North Carolina; however, they are heavily involved with the facts of the case and are parties to a countersuit filed by Ford in Florida-state court. CAA is a titan in the sports and entertainment agency industry, which is why it is such a popular choice for elite talent searching for representation. With basketball in particular, the agency carries a high reputation among the top players in the league and has represented 52 first-round draft picks – something that would undoubtably appeal to Williamson heading into the 2019 NBA draft. Sure enough, on May 30, 2019, CAA publicly announced that it had reached an agreement with Williamson to serve as his representation for all marketing and contractual matters.
ESPN’s Adrian Wojnarowski followed up the announcement by informing the public that CAA representatives Austin Brown and Lisa Joseph-Metelus would serve as Williamson’s primary representatives. In contrast to Ford, Austin Brown and Lisa Joseph-Metelus are renowned for their expertise in representing basketball-specific clients. Brown, a co-head of CAA Sports’ Basketball Division, has represented 30 NBA players and negotiated more than $2.6 billion in free-agent deals. Joseph-Metelus is an executive with CAA and serves as a co-head of the agency’s basketball marketing and servicing division, where she spearheads the off-the-court efforts for more than four dozen emerging and NBA All-Star players.
In a quite cruel manner, CAA’s public announcement was as much of a shock to Ford as it was the rest of the country. According to court documents from the resulting lawsuit, it was not until the next day, following the public announcement, that Williamson informed Ford of his intent to terminate their partnership. This led Ford to believe that the CAA representatives had reached out to Williamson at some point between April 20 and May 29, 2019 and unlawfully induced him to void his contract with PSM. Though this assumption was not challenged in the North Carolina case, it is a prominent claim asserted in the countersuit brought by Ford in Florida.
b. The Agreement and Subsequent Lawsuits.
The Agreement between Williamson and PSM (of which a copy has been attached to this Article as “PSM Marketing Agreement”) was agreed upon and entered into on or about April 20, 2019—5 days after Williamson declared for the NBA draft. Though the full context of the Agreement may be viewed below, this section of the Article will highlight the relevant content with regard to the resulting lawsuit.
The Contract was drafted as a “Consulting and Joint Marketing and Branding Agreement” with a term of five years. By signing the Contract, Williamson consented to retain PSM for the following purposes:
- Introduce Williamson to endorsement opportunities;
- Exclusively oversee all marketing opportunities brought before Williamson;
- Analyze the economic value of endorsement opportunities;
- Provide draft contract language to Williamson for his review before entering into an endorsement deal;
- Negotiate on Williamson’s behalf with any company for purposes of an endorsement deal;
- Provide advice to Williamson on “building of [his] brand domestically and internationally”; and
- Accept that Williamson or an authorized representative on his behalf could refuse any opportunity in regard to his “image, likeness, signatures, or other personal attributes, including without limitation and any of all endorsements, performance of services, appearances, production companies, social media services and content monetization.”
In exchange, Williamson agreed to pay PSM a 15% commission on the gross value of any compensation relating to endorsement or branding. Additionally, the Contract included a termination clause which would void the deal if enforced by either party with 30 days’ notice. However, such termination is only permissible “for cause.” While the express language of the Contract does not specify which conditions would generate a “for cause” termination, it ordinarily requires a serious mistake—such as one party breaking the law or violating the terms of the contract.
In the Complaint filed in North Carolina, representation for Williamson asserted that a “for cause” for termination was established when, soon after signing with PSM, Williamson discovered that Ford had made “materially false and misleading” representations about PSM’s “marketing experience and capabilities” in order to induce Williamson to sign them as his representation. Accordingly, on May 31—a day after Williamson reportedly signed with CAA—a representative of Williamson emailed Ford the following message:
Please let this email serve as notice that the agreement entered into between me, Zion Williamson, and Prime Sports Marketing LLC is hereby terminated and voided effective immediately. Per my prior note and email, you are to cease all efforts and outreach on my behalf.
Two days later, Williamson’s attorney emailed PSM reiterating that the Agreement violated North Carolina’s Uniform Agent Act (the “UAAA”); and therefore, was invalid and unenforceable. On June 4, 2019, representation for PSM sent a letter in response to Williamson’s representatives it which they rejected the assertion that the Contract was invalid or voidable. Specifically, an excerpt from the letter states:
While we will not respond to the merits of your claims individually, please be advised that your recitation to and reliance on the North Carolina Uniform Athlete Agents Act (“UAAA”) is misplaced and not applicable to your Client nor to the Agreement that he voluntarily and knowingly entered into with our Clients. Your Client declared eligible for the 2019 NBA draft on or about April 15, 2019 and the subject Agreement between our respective Clients was entered into subsequent to your Client’s declaration for the NBA draft. Please be advised that we reject your claims that the Agreement is void and/or voidable.
Moreover, counsel for PSM asserted in this letter that the “foreseeable injuries, losses, damages and harm caused to [PSM would] likely exceed One Hundred Million Dollars ($100,000,000.00).” Although counsel for PSM threatened litigation against Williamson in its response, it also proposed the option to privately negotiate a resolution to the dispute. Ultimately, no such resolution was agreed upon, and on June 13, 2019, Williamson sued Ford and PSM collectively in the U.S. District Court for the Middle District of North Carolina.
In response, on June 19, 2019—about a week after Williamson sued Ford and PSM in North Carolina state court—Ford filed a countersuit in the State of Florida. Ford’s countersuit named Williamson, as well as CAA and the agency’s two representatives that signed Williamson as co-defendants. The countersuit seeks punitive damages in excess of $100 million and alleges a variety of claims, including: breach of contract, fraud, tortious interference with a contract, and unjust enrichment. Before addressing the context and developments of Ford’s countersuit, however, this Article will first discuss the North Carolina case and the significant court order which it has recently produced.
III. Williamson v. Prime Sports Marketing, LLC
In the Complaint, counsel for Williamson argued that the Agreement between Williamson and PSM constituted an agency contract under the UAAA; and therefore, was void for two independent reasons under the UAAA. First, the Complaint alleged that the Agreement was void because, in violation of the UAAA, neither Ford nor PSM were registered as athlete-agents in the State of North Carolina. Alternatively, Williamson asserted that the Agreement failed to meet the form of contract covered under the UAAA, and therefore, the Agreement was independently voidable, and properly voided by Williamson on May 31, 2019.
In support for the first claim, the Complaint first established that Ford is neither an agent certified by the NBPA or a registered athlete-agent in the State of North Carolina. Next, counsel for Williamson cited to § 78C-85 of the UAAA, which “forbids an individual from acting as an athlete agent without holding a certificate of registration from the Athlete Agent Registration Office of the North Carolina Secretary of State, and specifically provides that any agency contract is void if made with an individual who is not so registered.” Accordingly, Williamsons’ counsel argued that because neither Ms. Ford nor anyone associated with PSM is registered as an agent in North Carolina, the Contract was null and void from the start.
In support for the second claim, Williamson’s counsel argued that, in addition to being void pursuant to the allegations set forth in its first claim, the Agreement was also voidable because the Agreement lacked the conspicuous notice provision required under § 78C-94(c) of the UAAA. Specifically, Section 78C-94(c) states:
(c) An agency contract must contain, in close proximity to the signature of the student-athlete, a conspicuous notice in boldface type in capital letters stating:
WARNING TO STUDENT-ATHLETE IF YOU SIGN THIS CONTRACT:
(1) YOU SHALL LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT-ATHLETE IN YOUR SPORT;
(2) IF YOU HAVE AN ATHLETIC DIRECTOR, WITHIN 72 HOURS AFTER ENTERING INTO THIS CONTRACT, BOTH YOU AND YOUR ATHLETE AGENT MUST NOTIFY YOUR ATHLETIC DIRECTOR;
(3) YOU WAIVE YOUR ATTORNEY-CLIENT PRIVILEGE WITH RESPECT TO THIS CONTRACT AND CERTAIN INFORMATION RELATED TO IT; AND
(4) YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT. CANCELLATION OF THIS CONTRACT SHALL NOT REINSTATE YOUR ELIGIBILITY.
Conversely, PSM argued that the Contract was valid and enforceable – insisting that Williamson had effectively forfeited his college eligibility when he declared for the NBA draft on April 15, 2019 – and thus, the Contract was not subject to the UAAA. As such, on September 12, 2019, counsel for PSM moved the Court to dismiss Williamson’s claims. However, the Court denied PSM’s motion to dismiss, and on January 20, 2021, the presiding Court filed an order in response to a motion for partial judgment by Williamson’s representatives – which established the following:
a. Zion Williamson was a Student-Athlete Under the UAAA.
In its review, the Court acknowledged the following terms of the UAAA:
- Pursuant to § 78C-87(a)–(c), an individual is required to register with North Carolina’s Secretary of State’s office before acting as an athlete-agent in the state, unless the individual is a North Carolina licensed and resident attorney.
- Pursuant to § 78C-86(2), the UAAA defines “athlete-agent” as a person who (1) “enters into an agency contract with a student-athlete;” (2) “directly or indirectly . . . recruits or solicits a student-athlete to enter into an agency contract;” or (3) “represents to the public that” he or she “is an athlete agent.”
- Pursuant to § 78C-88(d), an agency contract resulting from conduct that violates § 78C-88 of the UAAA is void.
- Pursuant to § 78C-86(1), under the UAAA, the term “agency contract” incorporates any agreement which grants an individual the authority to negotiate or solicit “a professional-sports-services contract or an endorsement contract” on behalf of a student-athlete.
- Pursuant to § 78C-94(a)–(c), under the UAAA, an “agency contract” requires a “conspicuous” warning to the potential client that his signature will result in a loss of intercollegiate eligibility as well as the date of execution of the contract.
- Lastly, pursuant to § 78C-94(d), an agency contract that does not meet the express terms of § 78C-94(a)–(c) is voidable by the student-athlete.
In its first claim of defense, PSM’s attorneys argued that Williamson was not a student-athlete at the time PSM initially came into contact with him because Williamson had already forfeited his college eligibility; thus, the terms of the UAAA did not apply to him or their dealings. In review of this assertion, the Court relied on the definition set forth under § 78C-86(11) of the UAAA, which provides that a “student-athlete” is “[a]n individual who engages in, is eligible to engage in, or may be eligible in the future to engage in any intercollegiate sport.” Accordingly, the Court held that because Williamson played basketball for Duke, and because the UAAA merely requires that an individual “engages in” an intercollegiate sport in order to be considered a student-athlete, Williamson was a student-athlete under the UAAA.
Alternatively, PSM’s attorneys argued that even if Williamson qualified as a student-athlete under the UAAA, he was deemed permanently ineligible to engage in intercollegiate sports and would thus be precluded from any protections offered by the UAAA. In support for this claim, PSM argued that, prior to signing the Agreement on April 20, 2019, Williamson: (1) agreed to be represented by a non-NCAA-certified agent; (2) accepted benefits from said agent; and (3) entered the NBA draft without any intention of withdrawing his declaration. However, the Court deemed this defense baseless, holding that PSM failed to rely on material allegations of fact in support thereof. Thus, the Court affirmed Williamson’s status as a student-athlete under the UAAA.b.
b. Neither PSM Nor the Marketing Agreement Complied with the UAAA.
After determining that Williamson was a student-athlete, the Court shifted its focus to Ford and acknowledged that, although she holds herself out as an athlete-agent, neither she nor PSM were ever licensed as athlete-agents in North Carolina, nor applied for such designations. As such, in accordance with § 78C-88(d), the Contract was void. Additionally, the Court acknowledged that the Agreement lacked the necessary conspicuous warning required under § 78C-94(c) of the UAAA. Therefore, pursuant to § 78C-94(d), the Contract was in fact voidable by Williamson – which he effectively did on May 31, 2019.
c. Court’s Holding.
Based on these findings, the Court granted Williamson’s motion for partial judgment, effectively voiding the Agreement between Williamson and PSM. In support of its holding, the Court provided that, as a matter of law, there was no dispute regarding the following facts: (1) Williamson was a student-athlete at Duke at the time the parties engaged one another; (2) Williamson had not been declared permanently ineligible by the UAAA or the NCAA; (3) Ford was not a certified agent in North Carolina; (4) the Agreement did not include the required warnings under the law; and (5) Williamson and his family communicated to PSM that they were terminating and voiding the Agreement.
Despite the North Carolina Court ruling in favor of Williamson in affirming the Agreement as void, the case remains open as the judgement so granted was merely a partial judgment. Moreover, the matter remains in dispute via the countersuit filed by Ford in the State of Florida. That litigation is also ongoing.
IV. Ford’s Countersuit
On June 19, 2019— the day before Williamson went #1 overall in the 2019 NBA draft —Ford filed a countersuit in the State of Florida. Commenting on the countersuit, Ford’s lawyer said in a statement that Ford
is deeply saddened and disappointed that what was once a promising business relationship with Mr. Williamson has now resorted to legal action. She looks forward to her day in court in the proper Jurisdiction of the State of Florida, the laws of which Mr. Williamson agreed would govern the terms and conditions of his contract with Prime Sports Marketing, and for a jury to hold all of the Defendants accountable for the wrongs they committed against her and against Prime Sports Marketing.
The significance of Ford seeking litigation under Florida state law as opposed to North Carolina relates directly to the UAAA. In an interview with CNN, ‘Sports Illustrated’ legal analyst Michael McCann (“McCann”) provided that “Ford sees Florida as more favorable law given that, with respect to college athletes, Florida law does not impose the same contractual requirements on marketing agents as it does on player agents.”
In support of their argument that Florida is the correct and proper venue to litigate the claims arising from the Agreement, Ford’s counsel points to a provision in the Agreement which provides the following language: “[t]he validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Florida.”
In contrast, Williamson’s lawyers argued that Ford filed the countersuit in Florida to circumvent the original lawsuit against her in North Carolina, “where the case clearly belongs.” In support of this assertion, Williamson’s counsel relies on the facts that Williamson grew up in North Carolina, played college basketball in that state, and was approached by PSM there as well.
Among the various claims asserted against CAA in its countersuit, Ford’s counsel accuses CAA and its agents of interfering with the Agreement by telling Williamson and his family that CAA was “better suited” and could secure more compensation on deals than PSM. The countersuit further alleges that CAA and its agents followed up their interfering efforts by unlawfully inducing Williamson to void his contract with PSM so that he could sign with CAA instead. In their claims asserted against Williamson, Ford’s counsel contends that the UAAA no longer applied to Williamson at the point that PSM signed him, because he had forfeited his NCAA eligibility and no longer intended to compete as a college athlete. Ford argues that Williamson “repeatedly and publicly declared and made it abundantly clear that he was not ever returning to intercollegiate basketball.”
In an alternative claim to challenge Williamson’s eligibility at the time the Agreement was entered into, counsel for Ford alleged in its countersuit that the UAAA should not apply because Williamson and his family had accepted improper financial benefits while he was still enrolled at Duke. The validity of this claim will prove to be highly consequential to the outcome of both the North Carolina case, as well as the countersuit in Florida, because if Williamson truly received impermissible benefits before or during his time at Duke, he would no longer be protected under the UAAA. In an interview with ‘The Athletic,’ Ford’s attorney Larry Strauss emphasized that it does not matter whether it was Williamson or someone in his family that accepted the impermissible benefits: “[t]he nuance is that this does not just apply to [Zion]. Any third party that acted as an agent, his parent or handlers, all of their actions can also affect eligibility.”
Ford’s attorneys initially relied upon several sources of evidence to support this claim; but, as the case has proceeded, the evidence has diminished quite considerably. First, Ford’s attorneys sought to have Williamson testify under oath about whether he received improper benefits before playing for Duke; however, the Florida state judge granted Williamson a full stay of the Florida lawsuit brought by Ford. Daniel Wallach, a reporter for ‘The Athletic,’ provides clarification on the Court’s decision:
Second, Ford’s attorneys sought to introduce evidence from the public hearings of lawyer Michael Avenatti, who alleged that two men in charge of Nike’s Elite Youth Basketball League discussed with a Nike executive paying Williamson $35,000 while he was still in high school.Avenatti also alleged that Nike financially bribed Williamson to attend Duke – a Nike-sponsored program. Ultimately, this evidence was deemed invaluable after an internal investigation conducted by Duke University negated the accusations and Avenatti was later convicted of trying to extort Nike.
Similarly, Ford’s attorneys sought to introduce evidence from a South Carolina lawsuit filed by Brian Bowen, a former collegiate athlete, against Adidas. As part of that case, Bowen’s attorneys presented evidence showing payments from Adidas to Williamson’s parents in 2016 and 2017, prior to Williamson’s lone season at Duke in the 2018-19 season. However, Bowen’s case has since been dismissed after the presiding judge ruled that Bowen failed to meet the requisite threshold needed to establish the claim asserted. Accordingly, although the validity of this particular claim is still open to judicial review, the supporting evidence has progressively turned in Williamson’s favor.
V. Analyzing the Outcome Thus Far
Just over two years have passed since the litigation surrounding this Agreement commenced in the summer of 2019; and still, each side remains confident that they will prevail when the matter is inevitably resolved. Following the Court’s holding in the North Carolina case, Williamson’s attorney, Jeffrey S. Klein, released a statement saying,
We are grateful that the Court invalidated the contract based on the merits of the case, in line with the clear, relevant requirements under North Carolina law . . . [t]he Court confirmed that actual facts matter, which hopefully will serve as a cautionary tale for unscrupulous agents looking to prey on student-athletes.
Klein’s full statement provided the following:
On the other side, however, the attorneys for PSM released their own statement regarding the Court’s holding, emphasizing their belief that the case is far from over. Commenting on the Court’s decision, one of PSM’s attorneys, Willie E. Gary, stated, “[m]ost of the counterclaims remain and we intend to vigorously pursue them . . . [w]e are also reviewing all options for appeal. Gary went on to say, “[o]ur client put her heart and soul into representing Zion Williamson’s interests, and is certainly entitled to compensation for her hard work. Williamson’s new agent should not be able to benefit from Ms. Ford’s considerable efforts.”
In the foreseeable event that counsel for PSM files for appeal in North Carolina, the grounds for appeal will likely rely on NC § 15A-1442(3), which provides that appeal is proper where the evidence was insufficient as a matter of law. It is important to note that before the Court reached its decision in this case, counsel for PSM filed a motion to supplement their response in an attempt to introduce new evidence which they claim suggests that Williamson was not a student-athlete at the time PSM initially came into contact with him. Specifically, the evidence sought to be introduced consisted of: (1) a sworn affidavit from Donald Kreiss indicating that Williamson had committed to have Maximum Management Group (“MMG”) serve as his marketing agency; (2) a copy of an alleged marketing agreement between Williamson and MMG; and (3) a copy of an alleged letter from Williamson to the President of MMG promising to repay a loan that was allegedly accompanied by a color copy of Williamson’s state ID.
Williamson denied the authenticity of the alleged documents presented by PSM. Nonetheless, the Court denied admission of the evidence, holding that admission via a motion to supplement would be invalid as the documents were not referenced anywhere in their answer, affirmative defense, or counterclaim. Accordingly, although admission of the evidence was denied via a motion to supplement, PSM may attempt to reintroduce the new evidence via an appeal. Nonetheless, though neither case regarding this matter has reached a final resolution via the Court or any alternative forms of settlement, the Court’s holding in the North Carolina case has produced several interesting takeaways to consider moving forward. Primarily, this litigation provides much-needed clarification of the terms “student-athlete” and “athlete-agent.”
Additionally, regardless of the final outcome, this case will serve as a cautionary-tale for all athlete-agents—demonstrating that failure to comply with athlete-agent regulations will not go unpunished. In turn, this case will certainly encourage athlete-agents to practice a higher sense of awareness for local law requirements with respect to registration, as well as heightened caution and care when dealing with amateur athletes. In direct consideration for the Court’s holding in this case, athlete-agents should invariably incorporate the necessary terms in any student-athlete agreement, including a section whereby the potential client acknowledges and confirms that they are no longer eligible as a student-athlete.
On Wednesday, September 15, 2021, “a federal court judge in Greensboro [North Carolina] ruled the contract, which spawned two lawsuits, is null and void because Ford violated North Carolina’s athlete-agent laws.” “Issuing her final ruling in Williamson’s lawsuit against Ford and her Prime Sports Marketing agency, Judge Loretta Biggs said none of the allegations Ford’s legal team filed claiming Williamson violated his NCAA eligibility at Duke mattered in this case.”
“The question the court had to determine in interpreting the applicability of the UAAA was not whether plaintiff (Williamson) could have conceivably been found permanently ineligible by the overseeing collegiate association or should have been found permanently ineligible, but rather whether defendants (Ford, Prime Sports Marketing) had sufficiently alleged that he was permanently ineligible,” Biggs wrote in her final opinion. “The court concluded that defendants failed to do so.”
Last January 20th, Judge Biggs issued an initial opinion that the Williamson contract was void. Ford’s attorneys filed motions to have that opinion reconsidered. Judge Biggs said on Wednesday, September 15, 2021 that Ford’s attorneys had not presented any evidence that would change her mind.
“It appears that defendants wish to engage in a fishing expedition into the backgrounds of plaintiff, his parents, and his associates,” Biggs wrote, adding that Ford’s attorneys are attempting to “re-litigate matters which have been addressed by the court.”
The lawsuit including Ford and Prime Sports Marketing filed against Williamson and CAA remains active in a Miami court. But Ford and Prime Sports filed a voluntary dismissal of their claim against Williamson on May 7, 2021.
One of the primary duties for athlete-agents is to represent and promote the best interests of their client(s). Yet, as demonstrated by the facts of this case, certain athlete-agents are often motivated by, and are far more concerned with, other considerations in their pursuit for representation of student-athletes. Though the general circumstances surrounding the issue in dispute for this case are far from unique, this case in particular stands out among others due to the persistent national attention that shadows Williamson. Of more significance than the allure of Williamson’s celebrity status, however, is the influence that this case will have over the laws and regulation of athlete-agents for years to come.
In furtherance of the NCAA’s objective to protect student-athletes while also regulating athlete-agents, the RUAAA effectively promotes compliance with that duty, as evidenced by this case. After reviewing the Court’s analysis in reaching a determination regarding the validity of the Agreement, it becomes apparent how beneficial it was for Williamson to have the case heard in a RUAAA state as opposed to a UAAA state. Accordingly, if nothing else, the Court’s holding in this case will likely encourage more states to enact the RUAAA after seeing how it is effectively used to protect the interests of student-athletes.
Regarding the final outcome for this matter, the federal ruling in North Carolina is an encouraging sign that a resolution may soon be reached. However, it remains to be seen how the ruling will affect the separate but related lawsuit filed in Florida. McCann anticipates that the litigation will end in a settlement, stating: “[c]hances are it won’t follow Williamson too long into his very promising NBA career. But it may require some of his money to make it go away.” For now, the parties will continue to litigate in what has undoubtably been an exhausting, yet pivotal case concerning the highly contentious area of student-athlete representation.
Jaime Garcia Montes is a third-year law student from Miami, Florida, attending Marquette University Law School. As a law student, Jaime currently serves as an editor and contributor for the Marquette Sports Law Review (Volume 31), as well as a member of the Pro Bono Honors Society, Sports Law Society and the Intellectual Property Law Society. Beyond his academics, he has served as a legal intern for the Law Office of Martin J. Greenberg, LLC & Gamebreakers, LLC, as well as a research assistant for the National Sports Law Institute and is a 2021 Sports Law Certificate candidate.
Prior to attending law school, Jaime earned his bachelor’s degree from Florida State University with a major in Editing, Writing & Media, as well as a minor in Communications. In May of 2021, Jaime will graduate with a Juris Doctor from Marquette University Law School and will immediately focus his time and efforts on preparing to take the Florida Bar Examination in July of 2021. Jaime intends to practice law in Miami, Florida with a heightened interest in the fields of sports and entertainment law and intellectual property law.
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